The
applicant seeks a provisional order in the following terms:
“Terms
of final order sought
That
you show cause to this honourable court why a final order should not be made in
the following terms:
1.
That the respondents, their servants, agents, assigns or successors in title be
and are hereby permanently restrained from interfering in any way with applicant's
mining and other operations at Norma V 2-4 and Panganai 7 and 8 mining claims.
2.
That the respondents and all such persons keep a distance of half a kilometre
from such mining claim.
3.
That the respondents jointly and severally, the one paying the other to be
absolved, pay the costs of this application.
Interim
relief granted
Pending
determination of this matter, the applicant in [sic] granted the following relief –
That
paragraphs 1 and 2 of the terms of the final order sought operate as an interim
interdict restraining the respondents as there set out, that is to say, from
interfering in any way with applicant's mining and other operations at Norma V
2-4 and Panganai 7 and 8 mining claim, and that they keep a distance of half a
kilometer from the said claims.”
The
respondents have filed a notice of opposition and opposing papers. They also
filed a counter-application.
The
respondents also raised some points in limine. In light of the concession made
by the applicant to limit the interdict to Norma V 2-4-, the points in limine
that had some merit fall away.
As
alluded to above, the applicant has conceded that there are problems as regards
Panganai 7 and 8 mining claims. This concession is rightly made as the
applicant's name does not appear as the purchaser of these claims in the Agreement
of Sale forming the basis of the claim. The same cannot be said of Norma V 2-4
mining claims. In the latter, it is clear that the applicant purchased them.
A
dispute arose between the applicant and the first respondent. The boundary
dispute was correctly referred to the Mining Commissioner, Bulawayo for
resolution. A Mr Nyoni from the Mining Commissioner's office attended to the
dispute and visited the area. Mr Nyoni's determination was that the first respondent
was working “outside his Panganai claims but inside one of Norma V 2-4 claims
belonging to the applicant.” The Mining Commissioner informed the parties about
this determination in writing. The Mining Commissioner also advised the
Zimbabwe Republic Police, Filabusi, to assist the applicant to remove the first
respondent and his employees from Norma V 2-4.
What
I discern from the first respondent's opposing papers and counter application
is that the first respondent does not dispute that Norma V 2-4 belongs to the
applicant. Equally, the first respondent does not lay any claim to Norma V 2-4.
The respondents are claiming Norma 2C and 2D. In particular, the respondents
dispute that the area determined by the Mining Commissioner to be part of Norma
V 2-4 (i.e the area where the respondents have their workers carrying out
mining operations) is indeed so; they allege that it is part of their Norma 2C.
They, in essence, are challenging the above-mentioned findings of Mr Nyoni of
the Mining Commissioner's office. The applicant's case is that this area is
part of Norma V 2-4 and hence the protection that is sought in casu.
As
alluded to, the applicant is supported by the statutory authority in charge of
such mining claims.
The respondents are not happy with the
determination of the Mining Commissioner but they have not yet sought a review
of this decision of the Mining Commissioner. I do not see how they can, in the
circumstances, legally resist the interdict sought by the applicant.
